Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

November 11, 2008

Massachusetts Probation For Fraud Is Violated By Assault Charges

Today is Veteran’s Day. It is a day for reflection and a day to honor the men and women who have served this country in the trenches of various lands throughout the years.

Today’s daily blog looks at a matter occurring inside more local trenches. Criminal Justice trenches. The courtroom. A courtroom on Salem, Massachusetts, to be exact. While it certainly does not involve the valor we celebrate today nationally, it does contain some violence and a couple of lessons for us.

Martin S., 53, of Lynn (hereinafter, the “Defendant”) recently lost his battle for his own personal liberty in the Salem courtroom. He was sentenced to serve two years at the Massachusetts Correctional Institute at Cedar Junction as he was found to have violated probation. Two witnesses testified at the hearing that he grabbed a woman by the throat and fought another man during a September 21, 2008 altercation at an apartment on Lynde Street in Salem.

The Defendant’s attorney said he had gone to the apartment to get his girlfriend out of there because she was drinking alcohol, a violation of her probation for a drunken-driving conviction.

Although the assault charge is still pending in court, the Superior Court Judge observed that the arrest itself is a probation violation. “He’s gotten away with quite a bit in the last couple of years,” the judge said yesterday before announcing the sentence at the conclusion of a probation hearing.
The facts for which the Defendant was on probation might have tempered Justice alittle in this case. Last year, the Defendant received the five years of probation sentence after pleading guilty to two counts of larceny in a highly publicized church con case.

In the 2005-06 church scam, the Defendant was one of three men who posed as a landlord willing to rent an apartment to a desperate woman with health problems who pretended to be living in a car with her two young children. The “landlords” were given rent money, amounting to Ten Thousand Dollars, by the Salvation Army in Salem and more than a dozen area churches.

The woman turned out to be a drug addict feeding her habit. The scheme was revealed to be a scam.
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Since then, he has twice violated the terms of that probation, the judge noted. He failed to attend substance-abuse counseling and had now been arrested last month in Salem on a charge of assault and battery.

For the Defendant, it took three strikes to lose his freedom. It was not lost to any foreign enemy, however. No, in the Defendant’s case, I will quote the old comic strip, POGO.

Today’s Defendant does not appear to be the most sympathetic of characters. He does, however, serve as an example on the realities of being on probation.

First of all, the Defendant had already received a break that many probationers are not given. Here I refer to the earlier violation of failing to attend the ordered substance-abuse counseling. He could have been sent to Commonwealth Housing at that time.

Of course, that was simply the second strike; he could have gone to jail for the scam on the area churches. However, he made the mistake I have seen so many make. He was put on probation and somehow thought he could continue business as usual. He is free to try, of course, but then, it brought him to where he could have gone in the first place. Incarceration.

Being on probation is no joke. It is not a “Get out of jail free” card. You trade in some of your freedoms to get it. Part of the cost is that you will do what probation, and/or the court, orders. Period. You also lose a certain amount of that “presumed innocent” stuff you hear so much about. True, in the Defendant’s new, still pending, case, he is currently presumed innocent. However, the violation was in the getting arrested. So, he will await trial to put the Commonwealth to the test…while behind bars.

…And by the way, in case it was not evident…you don’t get to attack your girlfriend to prevent her from breaking her probation. It does not qualify under some kind of “self defense” theory.

Happy Veteran’s Day, and to all the vets themselves…thank you.

The full article of this story can be found at
http://www.salemnews.com/punews/local_story_308224036.html?keyword=secondarystory

By publishing this information on this Web site, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.